Exceptions allowing contact in Ontario domestic criminal cases

Accused may be released on conditions that allow for contact with the victim.

While extremely rare, sometimes police forces and courts in Ontario will allow for immediate communication and physical contact between the accused and the victim in domestic violence cases. This usually will take the form of an exception being written into the accused’s Undertaking (Form 10) or Release Order (Form 11) that allows for contact with the consent of the complainant (alleged victim).

The wording on the Undertaking or Release Order will say something like:

• No contact with the victim except with their express written, orally revocable consent.

Does the written consent have to be filed with the police or Crown Attorney’s office?

It does if the clause specifically states that it does. This would normally read similar to:

• No contact with the victim except with their express written, orally revocable consent to be filled with the officer in charge.

It is very rare to see an upfront exception be built into someone’s release conditions before their first court appearance date. In the vast majority of cases (probably 95%+) the accused and victim will have to remain apart once the charges are laid. The above noted exceptions may be added later, but very few accused will be so fortunate to have the police or bail court grant an exception from the very beginning of the case.

How come the police allowed for consensual contact right away in our case?

This is normally a combination of two factors:

1. The accusation does not involve significant injury or the use of a weapon
2. The accused is lucky to have an officer in charge (OIC) respond to the call that is comfortable with such release conditions

The officer who responds to the 911 or other police report will sometimes be of the opinion that it is okay for the parties to continue to live together and communicate after the charges are laid. Most police officers take a more cautious approach and only release on no-contact conditions and allow the courts to decide contact at a later date.

This is the safest approach for the officer to avoid responsibility if something happens again, but an extremely difficult, often heavy handed approach for the accused, the victim, and their family who are immediately forced apart.

If the officer who responds to the call is a more seasoned, experienced officer they may recommend to their manager, supervisor or booker that contact is okay with consent upon release. Usually more than one officer is involved in the decision making process regarding release conditions but the OIC's input is crucial. Upfront contact exceptions are usually only seen in domestic violence cases that involve virtually contactless assaults without injury or cases of mischief (CC s. 430 (1) involving property damage only.

While most officers don’t want to take the risk of later being blamed for releasing the accused with contact should something go wrong, some do recognize the stresses no-contact clauses put on the family. No-contact conditions displace people from their homes who may have nowhere else to easily go. Not everyone has family and/or friends to help them, nor can everyone afford to pay for a new place to live.

What if the officer refuses to add an exception to the no-contact conditions? Can the victim show up at the courthouse and ask for contact?

In Ontario, 95%+ of the time there will be a no-contact condition once the charges are laid. If the officer wouldn’t listen to your requests for contact or told you it will be dealt with in court, this is perfectly normal. No-contact is the norm by far even in the most minor of domestic cases.

Sometimes the accused will refuse to agree to the Undertaking (Form 10) terms of no-contact and will be held for the bail court to decide the terms of release. This also happens when the police do not offer to release the accused from the station on the Form 10 and hold them for bail. At the bail hearing there is a chance that an accused’s bail plan will include contact with consent but this is also extremely rare right from the start.

If the accused is lucky to have a sympathetic, and often extremely experienced senior Crown working on their bail plan, they may agree to such an exception if they know that the victim wants contact. Sometimes in this very limited way having the victim show up at the courthouse for the bail hearing could theoretically be helpful if the Crown is willing to consider victim input at that stage.

Crowns, especially the more junior ones, are likely uncomfortable consenting to contact at this stage because they have not had the opportunity to review the case disclosure or discuss the matter with the OIC beforehand. More senior Crowns could look at the same case and be more comfortable allowing contact early. If the accused is very lucky, and the facts are just right, they may catch a break and be allowed to go home right away while the case is pending.

Don’t burn bridges or make things worse by demonstrating a lack of patience with the police or Crown.

Again, no-contact release conditions from the start are the norm in Ontario. While most officers will not advocate for contact immediately, their opinion will be sought by the Crown later. It is not in the accused’s or the victim’s best interest to scold the officer for refusing to allow contact. This could negatively impact their input in the later stages of the case.

The police officer’s opinion regarding contact is an important consideration for the Crown and the Judge (court). If anger and aggression is demonstrated they may be less likely to recommend no-contact exceptions to the Crown at a later stage. If you make a scene they will note it down and see it as a potential risk factor.

The accused and victim must also consider the importance of keeping the OIC on their side when it comes to getting the most favourable outcome in their case. Just like the Crown will ask for the officer’s opinion on allowing contact, they will also seek the officer’s input on things such as dropping charges, peace bonds, discharges, non-custody sentences, probation and other important factors that will come up down the line.

In most jurisdictions officers responding to domestic violence calls have very little discretion. Exceptions for contact with consent right off the bat on an Undertaking may not even be an option via DV/IPV policies in some Ontario jurisdictions. While rare, we have seen them firsthand in some GTA jurisdictions, including Toronto.

If we already have contact what is the next step in dealing with the charges?

While you are extremely lucky to have contact at such an early stage in the process, from here on in everything else remains the same. The courts will ultimately decide the fate of the accused and whether they go to jail or get a criminal record. Most people granted contact exceptions from the start will be first time offenders without any prior criminal record in relatively minor cases.

The goal is to have the matter withdrawn as easily as possible and in such a way that does not cause future problems with employment background checks, immigration (IRCC), U.S. travel, vulnerable sector screenings, family law proceedings, etc. If you or someone you want to help has been charged give us a call now for a free no obligation quote.


Call us today for a free assessment
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

---